Castle Doctrine Triumph: A Victory for the Right to Resist in Michigan

By a 5-2 majority, the Michigan State Supreme Court upheld the “Castle Doctrine” by validating a citizen’s right to resist unlawful arrest. In People v. Moreno, a 5-2 majority ruled that Angel Moreno, Jr. acted legally when he refused to allow the police access to his home without a warrant.

On December 30, 2008, Officers Matthew Hamberg and Troy DeWeis knocked on Moreno’s door while searching for an individual suspected of a probation violation. Moreno made the mistake of speaking with Hamberg through an open door, thereby giving the policeman an excuse to say that he detected the odor of marijuana (even though DeWeis – who apparently didn’t have Hamberg’s uniquely acute sense of smell — did not).

When Moreno refused to consent to a search, Hamberg said that he would get a warrant – and then lied by saying that it was necessary for him to enter the house in order to “secure” it.

Moreno ordered Hamberg to get off his porch, and began to close the door. Rather than obeying that lawful order from a citizen, Hamberg bulled his way into the house. A brief struggle ensued that ended when Hamberg told his companion to attack the victim with his Taser. Although a trivial amount of marijuana was found, no drug-related charges were filed. Convicted of resisting and obstructing and assault on a police officer, Moreno appealed the case to the state supreme court.

In its brief before the state supreme court, the State admitted that Hamberg’s search was “unlawful.” In other words, he acted as an armed, violent intruder, rather than a peace officer. This means that under Michigan’s version of the “Castle Doctrine,” as laid out in its Self-Defense Act (SDA), Moreno had a legally recognized right to employ deadly force, if necessary, to defend himself and his home.

As the Michigan State Supreme Court acknowledged in People v. Riddle (2002), “regardless of the circumstances one who is attacked in his dwelling is never required to retreat where it is otherwise necessary to exercise deadly force in self-defense. When a person is in his `castle,’ there is no safer place to retreat….”

The primary focus of the “Castle Doctrine” is the threat posed by government agents, rather than private trespassers. In a 1999 ruling (People v. Wess), the state Court of Appeals expressly recognized the individual right “to use such reasonable force as is necessary to prevent an illegal attachment and to resist an illegal arrest.”

In the dicta of that ruling the court pleaded with the legislature to change the Self-Defense Act:

“We share the concerns of other jurisdictions that the right to resist an illegal arrest is an outmoded and dangerous doctrine, and we urge our Supreme Court to reconsider this doctrine at the first available opportunity…. [W]e see no benefit to continuing the right to resist an otherwise peaceful arrest made by a law enforcement officer, merely because the arrestee believes the arrest is illegal. Given modern procedural safeguards for criminal defendants, the `right’ only preserves the possibility that harm will come to the arresting officer or the defendant.”

Prompted by the Court of Appeals, the Michigan Legislature modified the relevant section of the state code (MCL 705.81d) by removing the word “lawful”; this supposedly meant that citizens would have to submit to an arrest irrespective of its legitimacy. However, the legislature did not expressly abrogate the common law right to resist unlawful arrest.

In a 2004 ruling (People v. Ventura) dealing with the right to resist an unlawful arrest, the same Michigan Court of Appeals, which had badgered the state legislature to modify the SDA, cited that modification as a positive statement of legislative intent. In a richly disingenuous passage, the court wrote that “it is not within our province to disturb our Legislature’s obvious affirmative choice to modify the traditional common-law rule that a person may resist an unlawful arrest.”

In People v. Moreno, the Michigan Supreme Court pointed out that “the right to resist unlawful arrests, and other unlawful invasions of private rights, is well established in our state’s common law.” Although the resisting and obstructing statute was modified, the majority continued, “the Legislature expressed no intent to do away with the common-law right to resist an unlawful arrest.”

The Moreno dissent advanced a very dangerous doctrine, insisting that “the issue here is not whether the officers lawfully entered defendant’s house, but rather whether the officers were acting to further their employer’s … interests.”

“The fact that a municipality may be liable for an unlawful act of an officer if the act that was done in the course of the officer’s official duty or employment necessarily means that an officer can commit an unlawful act while `performing his or her duties,” observed the dissent. As long as police officers are about “their master’s business,” they have license to commit unlawful acts – and citizens have no choice but to submit.